In re Petition And Articles of Association of Little River Drainage District

• Decision Date: 03 July 1911
• Citation: 139 S.W. 330,236 Mo. 94
• Parties: In the Matter of the Petition and Articles of Association of the LITTLE RIVER DRAINAGE DISTRICT; OTTO KOCHTITZKY et al., Petitioners, v. ST. LOUIS, MEMPHIS & SOUTHEASTERN RAILROAD COMPANY, Now the ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, et al., Objectors, Appellants
• Court: Missouri Supreme Court

139 S.W. 330

236 Mo. 94

In the Matter of the Petition and Articles of Association of the LITTLE RIVER DRAINAGE DISTRICT; OTTO KOCHTITZKY et al., Petitioners, v. ST. LOUIS, MEMPHIS & SOUTHEASTERN RAILROAD COMPANY, Now the ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, et al., Objectors, Appellants

Supreme Court of Missouri

July 3, 1911

Appeal from Butler Circuit Court. -- Hon. J. C. Sheppard, Judge.

Affirmed.

W. F Evans, Moses Whybark and A. P. Stewart for appellants.

(1) The petition for articles of association of The Little River Drainage District fails to state the mode and manner of draining the district, and fails to contain a plain description of the commencement, the line and termination of the drains proposed, and the proceedings are void for that reason. Drainage, as to selection of routes, is entirely a different proposition to that of selecting a route for a street or other highway on land -- everyone can locate a highway on land by boundary marks given, and be advised of its practicability and feasibility, but plans protecting lands from water can only be ascertained by scientific investigation, and taxpayers have a right to demand that before the enterprise is entered upon it shall have been determined to be practical, and that the general character of the improvement shall be designated. They are entitled to pass upon the question whether or not the improvements shall be made, and they can exercise no intelligent judgment until they know the plan. They also have a right to have the plans fixed so that no departure from them shall be effected during the progress of the work. 2 Farnham on Waters and Water Rights, p. 1020, sec. 205, p. 1035, sec. 210, p. 1037, sec 212. (2) In none of the proceedings by the petitioners for the incorporation of the district is any route or plan designated. The petition asks for the incorporation of the district for the purpose of having the land within its limits "reclaimed and protected from the effects of water by drainage, ditches, levees, dykes or otherwise," and for this purpose to dig the necessary ditches and trenches and throw up the necessary dykes and levees. It enumerates the means to be employed to accomplish the result, but is silent as to plans. R. S. 1909, sec. 5496. (3) Any owner of real estate in the district, who has not signed the articles of association on or before the first day of the term of court he has been summoned to appear, may file objections to the organization, and assign reasons given him by the statutes as follows: 1st, why the drainage district should not be organized and incorporated; 2d, why his land or any part thereof will not be benefited by the proposed drainage; 3d, why his land should not be embraced in the drainage district and made liable to taxation for draining the same. R. S. 1909, sec. 5499. The only day he ever has in court to object to the organization, etc., of the district, is given to him by the above section. (4) He is given by the statute no right to contest the plan of drainage required to be made by the district after it is organized. R. S. 1909, secs. 5511, 5512, 5514. And to the report of the commissioners his only right is to except to any assessment for benefits or damages. R. S. 1909, sec. 5518. (5) Under the foregoing authorities the petition for incorporation failed to state facts sufficient to authorize the incorporation of the district as to the non-petitioning landowners, and it ought to have been dismissed as to these appellants. (6) If the petition is supported by the statute, as maintained by the petitioning landowners, then Secs. 5496 and 5499, R. S. 1909, are void for uncertainty as to these appellants, and all other landowners in the district who did not sign the articles of association, because these sections express no intelligent rule of action, and this court cannot supply such omissions in the statute. State ex rel. v. Railroad, 146 Mo. 155. (7) In the absence of plans of drainage submitted to the court with the petition, if such procedure is sanctioned by Sec. 5496, and other sections of Art. 1 of Chap. 41, R. S. 1909, relating to the organization of the district, then these statutes, as to the appellants who did not sign the petition, deny to them their day in court, according to authorized procedure granted by Sec. 5499 of the statutes, and deprive them of their property without due process of law. They would have no intelligent way of supporting their objections by showing why the drainage district should not be organized and incorporated, or why their land or any part thereof would not be benefited by the proposed drainage, or should not be embraced in the district and made liable to taxation for draining the same, as provided in Sec. 5499, and the effect of the statute would be to condemn them without hearing, proceed against them without inquiry, and render judgment against them without trial; and the statute would violate the Constitution of the State. Constitution, art. 2, sec. 30; St. Louis v. Richeson, 76 Mo. 470; Asphalt Co. v. Ridges, 169 Mo. 376; Bank v. Cornwell, 126 Mo. 43; Jones v. Gore, 142 Mo. 38; Henning v. Staed, 138 Mo. 430; Kuntz v. Sumption, 2 L. R. A. (Ind.), 655; In re Gannon, 5 L. R. A. (R. I.) 359; Ullman v. Baltimore, 11 L. R. A. 244; Gillman v. Tucker, 13 L. R. A. (N. Y.) 304. (8) The statute, under the facts in this case, also violates Sec. 1 of Art. 14 of the Amendments to the Constitution of the United States which prohibits the state from depriving any person of property without due process of law, or denying to any person, within its jurisdiction, the equal protection of the law. The proceeding in this case, if sanctioned by the statute, cannot be maintained as to these appellants under the pleadings and evidence without violating Sec. 1 of that amendment, since no opportunity has been afforded them to have a hearing. U. S. Constitution, art. 14, sec. 1; Bannon on the 14th Amendment, pp. 139-144; Ins. Co. v. Daggs, 172 U.S. 563. (9) The legislative authority to enact drainage laws is derived from the police power of the State. Land Co. v. Miller, 170 Mo. 253; 2 Farnham on Waters and Water Rights, p. 902; Hamilton, Law of Special Assessments, sec. 263, p. 222 and sec. 43, p. 31; Drainage Dist. v. Shroer, 145 Ind. 572; Zigler v. Mengers, 121 Ind. 99; Railroad v. People, 200 U.S. 561. (10) Art. 1 of Chap. 41, R. S. 1909, is not for the public benefit. It does not purport to be an exercise of the police power; it nowhere provides that the drainage shall be for the benefit of the public health, public morals, public safety or for the general well-being of the community. Statutes which authorize the drainage of land without requiring that the proposed drainage shall benefit the public health or otherwise be of public utility, are unconstitutional. In re Drainage Dist., 90 Wis. 301; Reeves v. County, 8 Oh. St. 333; Thompson v. County, 11 Oh. St. 678; Drainage Dist. v. Shroer, 145 Ind. 572; Fleming v. Hull, 73 Iowa 598; Kinnie v. Bare, 68 Mich. 625; Tillman v. Kircher, 64 Ind. 104; Wishmier v. State, 97 Ind. 160.

Oliver & Oliver for respondents; J. M. Blazer of counsel.

(1) The Legislature has the inherent power, in the first instance, to organize and establish drainage districts, levee districts special taxing districts, etc., and to charge the costs of constructing the local improvements, in whole or in part, to the property within the limits of such district. St. Louis v. Russell, 9 Mo. 507; St. Louis v. Allen, 13 Mo. 400; Giboney v. Cape Girardeau, 58 Mo. 141; Kelley v. Meeks, 87 Mo. 396; Levee Co. v. Harden, 27 Mo. 495; Columbia Co. v. Meier, 39 Mo. 53; Morrison v. Morey, 146 Mo. 561; Land Co. v. Miller, 170 Mo. 240; Prior v. Construction Co., 170 Mo. 451; Page & Jones on Taxation by Assessment, p. 892, sec. 553; Construction Co. v. Shovel Co., 211 Mo. 524; Meier v. St. Louis, 180 Mo. 391. (2) Since the Legislature has the inherent power and right to organize and create drainage districts directly, it also has the power and authority to delegate to such agency of the State as it may name, the right and power to organize and create such districts for it. This has long been the law in this State, as well as elsewhere, and the constitutionality of such a law cannot now be successfully questioned. Levee Co. v. Harden, 27 Mo. 495; Laws 1859, p. 284; Columbia Bottom Co. v. Meier, 39 Mo. 53; Laws 1879, p. 132; Land & Stock Co. v. Miller, 170 Mo. 240; sec. 5496, R. S. 1909; Morrison v. Morey, 146 Mo. 561; Ross v. Board, 1 L. R. A. (N. S.) 431; State v. King, 37 Ia. 462; Hagar v. District, 66 Cal. 54; Voigt v. Detroit, 123 Mich. 547, 184 U.S. 115; Hagar v. District, 111 U.S. 701; Irrigation Dist. v. Bradley, 164 U.S. 111; Page & Jones, Taxation by Assessment, p. 905, sec. 555-6; 2 Farnham on Water and Water Rights, sec. 170; Shaw v. State, 97 Ind. 23; Crites v. State, 97 Ind. 389; District v. Hagar, 66 Cal. 54; Meranda v. Spurlin, 100 Ind. 380; Hudson v. Bunch, 116 Ind. 63; Buchanan v. Roeder, 97 Ind. 605; Hagar v. District, 111 U.S. 701. (3) The constitutional right of notice and to contest the amount of the benefit assessed against appellant is given it by Secs. 5517 and 5518, R. S. 1909, but it has no constitutional right to appeal from the legislative act, or the act of a duly authorized agent of the Legislature, incorporating the district. Williams v. Eggleston, 170 U.S. 340; Page & Jones on Taxation by Assessment, sec. 739; Construction Co. v. Shovel Co., 211 Mo. 524; Meier v. St. Louis, 180 Mo. 391. The statute does not deny the non-petitioning landowners their day in court. It is again given a day in court and an opportunity, by sections 5517 and 5518, to object to any assessment that may be made. An opportunity, we may say, dehors this record it has availed itself of. Page & Jones,...